“Civilian casualties” authorized under secret US drone-strike memo

US justifies killings as acts of war despite civilian deaths, global precedent.

A secret Obama administration memo disclosed Monday outlines the legal justification for the government's drone-targeted killing program, a lethal strategy that authorizes the killing of innocents as collateral damage.

The memo (PDF), released by a US federal appeals court under a Freedom of Information Act request, describes the government's legal underpinnings for its so-called overseas targeted-killing program where drones from afar shoot missiles at buildings, cars, and people. It began under the George W. Bush administration but was broadened under Obama and now includes the killing of Americans.

The Obama administration fought for years to keep the Justice Department Office of Legal Counsel memo from becoming public. The document says that lethal force is authorized under international war rules and the US war on terror. Rights groups, however, decried the 41-page document, saying that it amounted to a legal blueprint for other nations to follow.

"While today the US, the UK, and Israel are the only countries known to have used killer drones, experts say that within 10 years virtually every country on earth will be able to build or acquire drones capable of firing missiles. The United States loosening and redefining international rules governing the use of force and war is ultimately not going to make anyone any safer," Pardiss Kebriaei, a senior attorney with the Center for Constitutional Rights, said in a statement.

The memo in part concerns the killing of Anwar al-Awlaki, a New Mexico native and radical cleric who the authorities said was an al-Qaida recruiter along the Arabian Peninsula and was associated with the September 11 hijackers. He was killed by an American drone strike more than two years ago in Yemen. Also killed in 2011 Yemen drone bombings were the cleric's 16-year-old son, Abdulrahman, and Samir Khan, who was editor of the English-language al-Qaida publication Inspire.

Parts of the memo mirrored the administration's successful defense of a lawsuit brought by relatives of those three in which the government said that the killings were justifiable acts of war. But the internal memo unveiled Monday says that the Department of Defense and other agencies like the Central Intelligence Agency may carry out extrajudicial killings of its enemies—even if they are Americans and regardless of whether or not innocent lives are taken in the process.

"DoD has represented to us that it would make every effort to minimize civilian casualties and that the officer who launches the ordnance would be required to abort a strike if he or she concludes that civilian casualties would be disproportionate or that such a strike will in any other respect violate the laws of war," according to the "memorandum for the attorney general."

But that didn't sit well with Kebriaei. In a telephone interview, the Center For Constitutional Rights attorney said that "if you accept the idea of a global war and you can follow a target wherever he goes, there is a significant risk of harm to civilians in the area precisely because the laws of war do allow some collateral harm. It's basically a huge risk of harm to ordinary people and civilians if you accept this premise which can be invoked by other countries."

The 41-page document was written by David Barron, who the Senate confirmed to a seat on a federal appeals court last month.

Jameel Jaffer, the deputy legal director of the American Civil Liberties Union that sued for the document's release, speculated in a Monday statement that "The drone program has been responsible for the deaths of thousands of people, including countless innocent bystanders."

The government has refused to divulge how many people it has killed with drones.

The memo also said the cleric's killing was justified by Congress, which in the immediate aftermath of the 2001 World Trade Center terror attacks authorized retaliation against al-Qaida. "The contemplated DoD operation, therefore, would be carried out against someone who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force," the memo said.

It does not matter whether the strikes target Americans, either. US citizenship, the memo said, does not impose "constitutional limitations that would preclude the contemplated lethal action under the facts represented to us by DoD, the CIA, and the Intelligence Community."

David Kravets
The senior editor for Ars Technica. Founder of TYDN fake news site. Technologist. Political scientist. Humorist. Dad of two boys. Been doing journalism for so long I remember manual typewriters with real paper. Emaildavid.kravets@arstechnica.com//Twitter@dmkravets

399 Reader Comments

But where does the constitution's fair trial guarantee contain a drone exception provision?

A couple of presidents, a gaggle of judges, a flock of congress folks, a murder of counsel need to go to federal prison for this in addition to their massive violations of the 4th Amendment under all this Warrantless star chamber secret court bullshit.

Fair trials are for criminals, not enemy soldiers engaged in hostile actions.

Go back to school. They are for each and every citizen each and every time. No exceptions. Like it or not, if you don't cherish and protect this, if it is convenient for somebody sitting at the lever of power, the next person could be you.

Gee, I dunno, negotiate with the Anwar tribe to extradite him via Yemen? You know, that country we aren't at war with that we dump foreign aid dollars to?

Finally an answer. Can that realistically be done quickly enough?

Now you're moving goal posts. The definition of "due process" doesn't change whether it is convenient or not for the government. You either give it to someone or you don't. You can go with "but it was way too complicated to give him due process!" as an excuse though, that's a different discussion.

It isn't too complicated. Due process simply doesn't apply. This was a military action against an enemy soldier. It doesn't matter that he called himself American. He was with the enemy and actively working with and for them. Do you really think he's going to listen to an American Judge? The American justice system has no jurisdiction in Yemen.

Gee, I dunno, negotiate with the Anwar tribe to extradite him via Yemen? You know, that country we aren't at war with that we dump foreign aid dollars to?

Finally an answer. Can that realistically be done quickly enough?

Now you're moving goal posts. The definition of "due process" doesn't change whether it is convenient or not for the government. You either give it to someone or you don't. You can go with "but it was way too complicated to give him due process!" as an excuse though, that's a different discussion.

It isn't too complicated. Due process simply doesn't apply. This was a military action against an enemy soldier. It doesn't matter that he called himself American. He was with the enemy and actively working with and for them. Do you really think he's going to listen to an American Judge? The American justice system has no jurisdiction in Yemen.

Quote:

Soldier: A person who serves in an army.

Which army exactly was he serving in? (do I also have to cite the definition of "army" before you answer to avoid the obvious next post I'll have to make?)

Anyhow if you are agreeing that he didn't get due process, what were you arguing about before?

Civilian casualties are justified in war because they are citizens of the country that you are at war with. In the case of terrorism, are the civilians killed even associated with the target, let alone a member of the same organization?

We're not at war with Pakistan, or Yemen, or Iraq, or Afghanistan.

We're at war with an ideological group that melts into the citizenry of said countries . . . citizens who may or may not agree with the radical politics of al-Queda and it's ilk.

Try again.

Why does he/she need to try again? You just made the point that they were making very well. Very well indeed. Good work.

Citizenship is not and should not be a shield for continuing to commit crimes or conduct war against the United States. Al-Awlaki took himself to a place where the local authorities could not or were not willing to apprehend him, and it would have been too risky to American lives to take him into custody. If he wanted the protection and privilege of a court trial to defend himself against the accusations of his crimes, he had only to take himself to the nearest US Consulate or Embassy. He didn't, so he deserved getting droned no less than any other terrorist. Consider it the international version of a nutjob cop-killer holed up in a cabin with a rifle: if he wants a trial, he can come out and surrender, but the police are under no obligation to unduly risk their own lives to take him into custody alive.

It isn't too complicated. Due process simply doesn't apply. This was a military action against an enemy soldier. It doesn't matter that he called himself American. He was with the enemy and actively working with and for them. Do you really think he's going to listen to an American Judge? The American justice system has no jurisdiction in Yemen.

He held no weapons, wore no enemy uniform, and is in no legal way definable as an enemy soldier.

He is, however, definable as an american citizen.

And again, extradition is the process that exists for just such events. And we have several tools to achieve extradition if we need to, from withholding foreign aid to economic sanctions and embargoes.

Or if we really, really feel the urge to just kill people, we can declare war.

Intent does matter! When your flesh is burning off and what's left of your digestive system is trying vomit itself up from the smell of it, magical faeries come and stop the pain if the intent was bad, and bring you to heaven, which totally exists, and you get to be with your family forever. That's the smell of freedom! Don't concern yourself with corporeal existence, it was just an illusion. Bad guys did this, and we are here to make it better

If the intent was good (ie, $homeCountry did it), see you in hell you non white non christian piece of shit. Don't let your fetid corpse stink up their intentions. How obscene of you

That's how it works right?

See, I thought to the dead, the being not alive part was the main issue, and to the survivors it's the bottomless pit of loss where their loved one stood.

It isn't too complicated. Due process simply doesn't apply. This was a military action against an enemy soldier. It doesn't matter that he called himself American. He was with the enemy and actively working with and for them. Do you really think he's going to listen to an American Judge? The American justice system has no jurisdiction in Yemen.

He held no weapons, wore no enemy uniform, and is in no legal way definable as an enemy soldier.

He is, however, definable as an american citizen.

And again, extradition is the process that exists for just such events. And we have several tools to achieve extradition if we need to, from withholding foreign aid to economic sanctions and embargoes.

Or if we really, really feel the urge to just kill people, we can declare war.

We don't have an extradition treaty with Yemen. We are trying to help Yemen so sanctions and embargoes would be counterproductive.

It isn't too complicated. Due process simply doesn't apply. This was a military action against an enemy soldier. It doesn't matter that he called himself American. He was with the enemy and actively working with and for them. Do you really think he's going to listen to an American Judge? The American justice system has no jurisdiction in Yemen.

He held no weapons, wore no enemy uniform, and is in no legal way definable as an enemy soldier.

He is, however, definable as an american citizen.

And again, extradition is the process that exists for just such events. And we have several tools to achieve extradition if we need to, from withholding foreign aid to economic sanctions and embargoes.

Or if we really, really feel the urge to just kill people, we can declare war.

We don't have an extradition treaty with Yemen. We are trying to help Yemen so sanctions and embargoes would be counterproductive.

You don't need a treaty to extradite. It simply streamlines the process.

And yes we are trying to help Yemen, but harboring terrorists is counter-productive to that help. So they can either let us go in and do what we need to do, do it themselves, or stop being helped.

Wow. Without any mention in your post you made the following exceedingly dubious assumptions: a) you picked the lowest posted number of dead civilians (the range being 286-890) and b) you just ran with the incredibly idiotic assumption that defines all military-age males in a strike zone as combatants.

I mean come on, that's pretty much the definition of circular reasoning ("hey if we define everybody hit by drone as a terrorist, our drone strikes have 100% accuracy, awesome!"), aren't you at least a bit ashamed to steep to such a level?

We don't have good numbers, I didn't cherry-pick anything, just searched for info and found what I linked. The chart was the first bit I saw when looking for statistics. Further down in the article it states another group that suspects 1/3 were civilians. Show me better numbers that don't rely on idiotic assumptions, my point will likely hold.

I seriously doubt that the 50 civilians to 1 terrorist number is correct, but if it were, then it supports the idea that drone strikes are more effective.

I felt it was clear in my original post; I'm not arguing for drone strikes, or for a war on terror, or anything else, just might be calling BS on that 50 civilians to 1 terrorist claim, or showing that the drone strikes are more effective than other tactics.

It isn't too complicated. Due process simply doesn't apply. This was a military action against an enemy soldier. It doesn't matter that he called himself American. He was with the enemy and actively working with and for them. Do you really think he's going to listen to an American Judge? The American justice system has no jurisdiction in Yemen.

He held no weapons, wore no enemy uniform, and is in no legal way definable as an enemy soldier.

He is, however, definable as an american citizen.

And again, extradition is the process that exists for just such events. And we have several tools to achieve extradition if we need to, from withholding foreign aid to economic sanctions and embargoes.

Or if we really, really feel the urge to just kill people, we can declare war.

We don't have an extradition treaty with Yemen. We are trying to help Yemen so sanctions and embargoes would be counterproductive.

You don't need a treaty to extradite. It simply streamlines the process.

And yes we are trying to help Yemen, but harboring terrorists is counter-productive to that help. So they can either let us go in and do what we need to do, do it themselves, or stop being helped.

That would be quite a project: eliminating Guantanmo Bay. It's over two km wide and up to 20 m deep, and besides the Cubans would be pretty upset if we filled in our part, because then they wouldn't be able to get out anymore. They'd just have a big lake.

All I'm attempting to point out is that war is hell, stupid, and wasteful. Drone strikes, for all of their faults, are still better than tanks, infantry, and bombers going in and leveling whole villages. And as far as things go, the United States leads the world in terms of restraint during military operations. This might be something to make good people weep for the future of humanity. I'll leave that to you to decide.

An ongoing study by the New America Foundation finds non-militant casualty rates started high but have declined steeply over time, from about 60% (3 out of 5) in 2004-2007 to less than 2% (1 out of 50) in 2012. The study puts the overall non-militant casualty rate since 2004 at 15-16%, or a 1:5 ratio, out of a total of between 1,908 and 3,225 people killed in Pakistan by drone strikes since 2004.[34]

So yes, depending on what numbers you believe we could have a CCR of 10:1, similar to the NATO air war in Yugoslavia (which ignores the civilians killed by the Serbs conveniently enough). However, As I pointed out above, that high ratio comes with comparably lower overall causalities. A full on ground war is far more devastating to the entire population. In fact, Iraq, Pakistan, and Afghanistan would be depopulated many times over if were to apply WWII tactics and technology.

Of course this leads to the question of should we wage war, which leads to the question of if we don't wage war, would this stop ISIS, Al Qaeda, and other non-governmental actors, and so on and so forth.

While I agree with you that war is horrible and also agree the US probably does lead the way in restraint when IN A WAR but they also probably lead the world in getting involved in conflicts as well so its kind of a moot point. There are many countries who don't engage in wars around the world who actually in fact lead the way in military restraint. In fact the States probably is one of the worst when you look at it like that.

It isn't too complicated. Due process simply doesn't apply. This was a military action against an enemy soldier. It doesn't matter that he called himself American. He was with the enemy and actively working with and for them. Do you really think he's going to listen to an American Judge? The American justice system has no jurisdiction in Yemen.

He held no weapons, wore no enemy uniform, and is in no legal way definable as an enemy soldier.

He is, however, definable as an american citizen.

And again, extradition is the process that exists for just such events. And we have several tools to achieve extradition if we need to, from withholding foreign aid to economic sanctions and embargoes.

Or if we really, really feel the urge to just kill people, we can declare war.

We don't have an extradition treaty with Yemen. We are trying to help Yemen so sanctions and embargoes would be counterproductive.

You don't need a treaty to extradite. It simply streamlines the process.

And yes we are trying to help Yemen, but harboring terrorists is counter-productive to that help. So they can either let us go in and do what we need to do, do it themselves, or stop being helped.

That simple, huh?

No one ever said that obeying the laws of our nation would be simple and easy. But if we want to maintain our integrity, that means obeying the laws of our nation.

Those numbers come from the assumption that every "able bodied" male is considered an enemy combatant by the military to goose the numbers. It would be like going to America and assuming every able bodied male is a drug user.

Wow. Without any mention in your post you made the following exceedingly dubious assumptions: a) you picked the lowest posted number of dead civilians (the range being 286-890) and b) you just ran with the incredibly idiotic assumption that defines all military-age males in a strike zone as combatants.

I mean come on, that's pretty much the definition of circular reasoning ("hey if we define everybody hit by drone as a terrorist, our drone strikes have 100% accuracy, awesome!"), aren't you at least a bit ashamed to steep to such a level?

We don't have good numbers, I didn't cherry-pick anything, just searched for info and found what I linked. The chart was the first bit I saw when looking for statistics. Further down in the article it states another group that suspects 1/3 were civilians. Show me better numbers that don't rely on idiotic assumptions, my point will likely hold.

Wait first you say you don't cherry pick numbers and then you state that you only posted the numbers that lead to a ~20% rate although even your link also shows a 33% rate? (not a small difference) Only mentioning the evidence that supports your claim is actually the definition of cherry-picking.

Anyhow, I don't have to know of any good statistics (I don't) to point out obvious flaws in the numbers you used. I mean nobody seriously here believes that every military aged male Pakistani is a terrorist right? In which case the whole analysis is worthless because the underlying assumption is flawed.

1. He doesn't meet that definition.2. You have provided no evidence he meets that definition, and linking to a dictionary will never fix that.

Evidence:See page 28-29 of the memo linked in this article. "President Obama delivered an address at the National Defense University on May 23, 2013.12 In that address, the President listed al-Awlaki’s terrorist activities.Pages 37-38: In a February 22, 2012, speech at the Yale Law School, Jeh Johnson, then-General Counsel of DOD, “summarize[d] . . . some of the basic legal principles that form the basis for the U.S. military’s counterterrorism efforts against Al Qaeda and its associated forces,” JA 399, and referring explicitly to “targeted killing,” said, “In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice,” JA 402.Page 38: In a March 5, 2012, speech at Northwestern University, Attorney General Holder said, “[I]t is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.” JA 449.

It isn't too complicated. Due process simply doesn't apply. This was a military action against an enemy soldier. It doesn't matter that he called himself American. He was with the enemy and actively working with and for them. Do you really think he's going to listen to an American Judge? The American justice system has no jurisdiction in Yemen.

He held no weapons, wore no enemy uniform, and is in no legal way definable as an enemy soldier.

He is, however, definable as an american citizen.

And again, extradition is the process that exists for just such events. And we have several tools to achieve extradition if we need to, from withholding foreign aid to economic sanctions and embargoes.

Or if we really, really feel the urge to just kill people, we can declare war.

We don't have an extradition treaty with Yemen. We are trying to help Yemen so sanctions and embargoes would be counterproductive.

You don't need a treaty to extradite. It simply streamlines the process.

And yes we are trying to help Yemen, but harboring terrorists is counter-productive to that help. So they can either let us go in and do what we need to do, do it themselves, or stop being helped.

That simple, huh?

No one ever said that obeying the laws of our nation would be simple and easy. But if we want to maintain our integrity, that means obeying the laws of our nation.

Evidence:See page 28-29 of the memo linked in this article. "President Obama delivered an address at the National Defense University on May 23, 2013.12 In that address, the President listed al-Awlaki’s terrorist activities.Pages 37-38: In a February 22, 2012, speech at the Yale Law School, Jeh Johnson, then-General Counsel of DOD, “summarize[d] . . . some of the basic legal principles that form the basis for the U.S. military’s counterterrorism efforts against Al Qaeda and its associated forces,” JA 399, and referring explicitly to “targeted killing,” said, “In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice,” JA 402.Page 38: In a March 5, 2012, speech at Northwestern University, Attorney General Holder said, “[I]t is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.” JA 449.

There is a lot more that follows the above.

I know this is complicated... but actually quote sections that are relevant to the definition and post it here. This is your assertion. Back it up.

If you accept that he broke laws then you must accept that he is a criminal. If he is a criminal, then it is required that he be tried in a criminal court, no matter how difficult or inconvenient it is.

If he, for whatever reason, is out of our reach and cannot be captured, then he is a fugitive and joins the ranks of countless other fugitives in US history. It is as simple as that.

Evidence:See page 28-29 of the memo linked in this article. "President Obama delivered an address at the National Defense University on May 23, 2013.12 In that address, the President listed al-Awlaki’s terrorist activities.Pages 37-38: In a February 22, 2012, speech at the Yale Law School, Jeh Johnson, then-General Counsel of DOD, “summarize[d] . . . some of the basic legal principles that form the basis for the U.S. military’s counterterrorism efforts against Al Qaeda and its associated forces,” JA 399, and referring explicitly to “targeted killing,” said, “In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice,” JA 402.Page 38: In a March 5, 2012, speech at Northwestern University, Attorney General Holder said, “[I]t is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.” JA 449.

There is a lot more that follows the above.

So, the people behind the actions defend them with vague assertions. I'm certainly convinced.

Wow. Without any mention in your post you made the following exceedingly dubious assumptions: a) you picked the lowest posted number of dead civilians (the range being 286-890) and b) you just ran with the incredibly idiotic assumption that defines all military-age males in a strike zone as combatants.

I mean come on, that's pretty much the definition of circular reasoning ("hey if we define everybody hit by drone as a terrorist, our drone strikes have 100% accuracy, awesome!"), aren't you at least a bit ashamed to steep to such a level?

We don't have good numbers, I didn't cherry-pick anything, just searched for info and found what I linked. The chart was the first bit I saw when looking for statistics. Further down in the article it states another group that suspects 1/3 were civilians. Show me better numbers that don't rely on idiotic assumptions, my point will likely hold.

Wait first you say you don't cherry pick numbers and then you state that you only posted the numbers that lead to a ~20% rate although even your link also shows a 33% rate? (not a small difference) Only mentioning the evidence that supports your claim is actually the definition of cherry-picking.

Anyhow, I don't have to know of any good statistics (I don't) to point out obvious flaws in the numbers you used. I mean nobody seriously here believes that every military aged male Pakistani is a terrorist right? In which case the whole analysis is worthless because the underlying assumption is flawed.

Just in re-visiting the article did I notice other stats including the 33%, that's just haste, not cherry-picking. It was hasty because it doesn't really matter.

You're attacking me over a triviality, because if the actual number is anything less than 98% civilian deaths and 2% terrorist deaths, then it supports my original claim that drone strikes are more effective than other tactics. That's just the way the numbers work out, nothing more. I suspect that the 50 civilians to 1 terrorist number is BS.

Evidence:See page 28-29 of the memo linked in this article. "President Obama delivered an address at the National Defense University on May 23, 2013.12 In that address, the President listed al-Awlaki’s terrorist activities.Pages 37-38: In a February 22, 2012, speech at the Yale Law School, Jeh Johnson, then-General Counsel of DOD, “summarize[d] . . . some of the basic legal principles that form the basis for the U.S. military’s counterterrorism efforts against Al Qaeda and its associated forces,” JA 399, and referring explicitly to “targeted killing,” said, “In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice,” JA 402.Page 38: In a March 5, 2012, speech at Northwestern University, Attorney General Holder said, “[I]t is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.” JA 449.

There is a lot more that follows the above.

I know this is complicated... but actually quote sections that are relevant to the definition and post it here. This is your assertion. Back it up.

Page 49: In a June 27, 2010, interview with Jake Tapper of ABC News, Panetta said: "Awlaki is a terrorist and yes, he’s a United States citizen, but he is first and foremost a terrorist and we’re going to treat him like a terrorist."

I'm not privy to the information that Mr. Tapper has. However, here is an excerpt from a Washington Post article http://www.washingtonpost.com/wp-dyn/co ... 00536.html:"Aulaqi was among the latest reasons for U.S. concern in Yemen, officials said. The radical cleric, a native of New Mexico and a former imam at Dar al-Hijrah mosque in Falls Church, had contact with three of the Sept. 11, 2001, hijackers and frequently delivered lectures advocating violent jihad that attracted legions of followers, especially among radical Muslims in the West.

He also exchanged e-mails with Maj. Nidal M. Hasan, who is suspected of opening fire on his fellow soldiers at Fort Hood, Tex., on Nov. 5, leaving 13 dead. Aulaqi praised Hasan in interviews and on his Web site, calling the Army psychiatrist a "hero" for killing American military personnel. U.S. officials said Aulaqi was a member of al-Qaeda and has been moving up the ranks, having recently been promoted to regional commander."

According to copious evidence that I unfortunately can't share for national security reasons, TboneT is planning terrorist attacks against the United States.

There now we have as much reason to believe you are a terrorist as we do al-alwaki.

His speeches here are rather anti-american...

I will continue to wear the flag on my arm and fight to support your freedom to say that. I can't tell you where I am, but I can tell you that I've heard the rockets shot by terrorists exploding when they land nearby.

According to copious evidence that I unfortunately can't share for national security reasons, TboneT is planning terrorist attacks against the United States.

There now we have as much reason to believe you are a terrorist as we do al-alwaki.

His speeches here are rather anti-american...

I will continue to wear the flag on my arm and fight to support your freedom to say that. I can't tell you where I am, but I can tell you that I've heard the rockets shot by terrorists exploding when they land nearby.

See he even admits to consorting with terrorists in secret hideouts. Definitely a threat to the nation.